ACIT CIR 7(1)2, MUMBAI V. HINDUJA GLOBAL SOLUTIONS LTD, MUMBAI

ITA 5426/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8912 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Transfer pricing
• Section: 143(3); 142(1); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 5426 / MUM/ 20 1 6 ( / ASSESSMENT YEAR: 2008 - 09 ) ACIT CIR 7(1)2 R.NO. 130, 1 ST FLOOR, AAYAKAR BHAVA N, M.K. RD MU MBAI PIN:400020 / VS. HINDUJA GLOBAL SOLUTIONS LTD. FORMERSLY KNOWN AS HTML GLOBAL SOLUTIONS LTD. HINDUJA HOUSE, 171, DR A.B. RD WORLI MUMBAI PIN:400018 ./ ./ PAN/GIR NO. : AAACT 1763 A ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 09 .0 8 .2017 / DATE OF PRONOUNCEMENT : 30. 10 . 2017 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 24 .0 6 .201 6 , PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 13 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE AY.20 08 - 09 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S 10A OF THE ACT ON UNIT - 11 & 111 WITHOUT APPRECIATING THE FACT THAT THESE UNITS ARE MERE EXPAN SION OF ALREADY EXISTING UNIT - 1 AND NOT REVENUE BY: S HRI RAJESH KUMAR YADAV ( DR ) ASSESSEE BY : SHRI F.V. IRANI (AR) ITA. NO. 5426 /M/2016 A.Y. 2008 - 09 2 INDEPENDENT UNITS WHICH IS IN CONTRAVENTION TO THE PROVISIONS OF SECTION 10A OF THE ACT. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3 . THE BRIEF FACTS OF TH E CASE , ARE THAT THE ASSESSE E F ILED ITS RETURN OF INCOME ON 29 . 09 .20 08 DECLARING TOTAL INCOME T O THE TUNE OF RS.1,69,49,418/ - . THE CASE WAS SEL ECTED FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 144C(13) OF THE ACT ASSESSING THE TOTAL INCOME TO THE TUNE OF RS.49,53,45,980/ - ON 22.11.2012 AFTER MAKING ADDITION ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT, DISALLOWANCE U/S 14A OF THE ACT AND DISALLOWANCE U/S 10A OF THE ACT . CONSEQUENT TO THAT, THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT IN VIEW O F THE ITA. NO. 254/M/2013 DATED 05.06.2013 IN WHICH THE ITAT SET ASIDE THE DENIAL OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 10A OF THE ACT, 1961 IN RESPECT OF UNIT NO. II AND UNIT NO. - III AND RESTORED THE MATTER BEFORE THE AO BY OBSERVING AS UNDER.: - HAV ING REGARD TO THE RIVAL SUBMISSIONS WE ARE IN AGREEMENT WITH THE PLEA OF THE ASSESSEE THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE ARE MUTATIS MUTANDIS IDENTICAL TO THOSE OF THE IMMEDIATELY PRECEDING YEAR. BY RESPECTFULLY FOLLOWING THE AFORECITED J UDGMENTS, WE SET ASIDE THE ASSESSMENT ORDER ON THIS POINT AND DIRECT THE ASSESSING OFFICER TO RE - DECIDE THIS ISSUE IN CONSONANCE WITH THE OBSERVATIONS MADE BY THE TRIBUNAL IN THE APPELLATE ORDER A.Y. 2005 - 06 . 4. THEREAFTER, THE NOTICES U/S 142(1) WERE ISS UED AND AFTER GIVING AN OPPORTUNITY BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER DENIED THE DEDUCTION U/S 10A OF THE ACT IN RESPECT OF PROFIT FROM THE UNIT - II AND UNIT - III AND ASSESSED THE TOTAL INCOME TO THE TUNE OF RS.48,91,01,501/ - . THEREAFTER, TH E ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ALLOWED THE ITA. NO. 5426 /M/2016 A.Y. 2008 - 09 3 CLAIM OF THE ASSESSE E IN RESPECT OF PROFIT OF UNIT 11 & 111 U/S 10A OF THE ACT. FEELING AGGRIEVED, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . WE HAVE HEARD TH E ARGUMENT ADVANCED BY T HE LD. R EPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE CONTENTION OF THE REVENUE IS THAT THE CIT(A) HAS WRONGLY ALLOWED THE DEDUCTION U/S 10A OF THE ACT IN RESPECT OF THE UNIT NO. I I & III. IT IS ARGUED THAT THE R EPRESENTATIVE OF THE REVENUE THA T UNIT NO. II & III ARE MERELY EXTENSION OF UNIT NO. I AND THESE UNITS ARE NOT THE INDEPENDENT UNITS THEREFORE, THE DEDUCTION IS NOT REQUIRED TO ALLOW ED IN VIEW OF THE PROVISION U/S 10A OF THE ACT , HENCE, THE FINDING OF THE CIT(A) IN THIS REGARD IS WRONG A GAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OTHER HAND, LD. REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE RELIED UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. BEFORE GOING FURTHER IT IS NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - THE AO HAD DISALLOWED THE CLAIM OF THE APPELLANT FOR DEDUCTION U/S 10A OF THE ACT FOR UNIT NOS. 11 AND 111 FOR RS. 33.07 CRORES AND RS. 14 CRORES RESPECTIVELY, BOTH TOTALING RS.47.07 CRORES. AS HAS BEEN DISCUSSED EARLIER IN THIS ORD ER, THIS ASSESSMENT ORDER HAD BEEN PASSED BY THE AO IN CONTINUATION OF SIMILAR ORDERS PASSED FOR THE PRECEDING ASSESSMENT YEARS. FURTHER, AS DISCUSSED EARLIER IN THIS ORDER, THIS MATTER HAS ALREADY BEEN DECIDED BY THE HONBLE TRIBUNAL IN FAVOUR OF THE APPE LLANT FOR AYS. 2005 - 06 AND 2010 - 11. THE RELEVANT EXTRACT OF THE ORDER FOR AY 2010 - 11 WHICH INTER ALIA RELIED ON THE ORDER OF THE HONBLE TRIBUNAL FOR AY 2005 - 06 IS AS FOLLOWS. 6 . ON APPRAI SAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE CLAIM OF TH E ASSESSEE U/S 10A OF THE ACT, 1961 WAS ALLOWED ON THE BASIS OF FINDING OF THE HONBLE ITAT IN THE ASSESSEES OWN CASE FOR THE A.YS. 2005 - ITA. NO. 5426 /M/2016 A.Y. 2008 - 09 4 06 & 2010 - 11. THE FACTUAL POSITION IS THE SAME. NO DISTINGUISHABLE MATERIAL HAS BEEN PRODUCED BEFORE US. NO LAW CONTRA RY TO THE LAW RELIED UPON THE CIT(A) HAS BEEN PRODUCED BEFORE US. THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY A ND CORRECTLY WHICH IS NOT REQUIRED TO BE INTERFERED WITH AT THIS APP ELLATE STAGE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 7 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HERE BY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 30 .10 . 2017 . SD/ - SD/ - ( G. S. PANNU ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 30 .10 .2017 V.P. SINGH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI